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District Court of Appeal, Second District, Division 2, California.


Civ. 19718.

Decided: November 25, 1953

Harold B. Pool, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, and William E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

From a judgment after trial before the court without a jury in an action to recover the balance due as an architect's fee for the erection of school buildings, plaintiff appeals from the portion thereof denying interest prior to the time of entry of the judgment upon the amount found due.

Facts: Paul Kingsbury, an architect, entered into two contracts with defendant's predecessors in interest. The contracts were entered into December 1, 1943, and August 25, 1948. Each contract contained a provision reading as follows:

‘Abandonment of Project and Cancellation of Agreement. If the District determines at any time, not to proceed with the construction of the building, or after the beginning of the construction work, to suspend indefinitely and/or abandon the construction work and shall require the Architect to suspend the performance of his services, or for reasons stipulated in Article 10 decides to cancel or terminate this Agreement, there shall be due and payable, within thirty (30) days after notice has been given in writing to the Architect of said suspension and/or abandonment or decision upon the part of the District to terminate or cancel this Agreement, a sum of money sufficient to increase the total amount paid to the said Architect on the fee to an amount which shall bear the same proportion to the fee as the amount of services performed and/or provided by the Architect prior to the time of such suspension and/or abandonment or termination of this Agreement shall bear to the entire services the Architect is required to perform and/or provide, plus the amounts, if any, still due the Architect under the provisions of Articles 2 and 4. Upon payment to the Architect of the amount or amounts provided under this Article, the District may terminate and cancel this Agreement.’

Defendant abandoned the contracts and the trial court gave judgment for plaintiff in the sum of $875 on the contract of 1948, and $39,000 on the contract of 1943, with interest to run from the date of judgment.

Question: Was plaintiff entitled to interest on the amount found to be due from the date of the filing of the complaint instead of from the date of judgment?

No. Section 3287 of the Civil Code reads as follows: ‘Person entitled to recover damages may recover interest thereon. Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day * * *.’

Mr. Justice Shenk, speaking for the Supreme Court in Lineman v. Schmid, 32 Cal.2d 204, at page 212, 195 P.2d 408, at page 413, 4 A.L.R.2d 1380, thus accurately states the rule: ‘The rule appears to be uniform, whether the case involved contract price or reasonable value, that interest is not allowable when damages cannot be computed except on conflicting evidence, such as in the present case, because of the absence of established or reasonably ascertainable market prices or values. In such cases, since the amount of the damages cannot be resolved except by accord, verdict or judgment, interest prior to judgment, is not allowable.’

This rule is here applicable for the reason that in the present case until there had been a trial there was no way of determining the percentage of work which the architect had performed, and in the absence of this element it was not possible to apply the formula set forth in the contracts for the determining of his fee upon the abandonment of the projects. Therefore the court's ruling was correct.

Lasky v. American Indemnity Co., 102 Cal.App. 192, 282 P. 974, relied on by plaintiff, is not applicable to the facts of the present case for the reason that in such case it was unnecessary to receive evidence in order to apply the formula for determining the amount of damages, the parties there having treated the cost as certain, which in such case was an essential element for applying the formula of the contract.

In the present case the parties did not treat the actual bases for the application of the formula as certain, defendant at all times having objected to evidence which was received tending to prove such bases. Therefore the situation is different from that in the cited case where there was no contest as to the costs.


McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.

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